Tapping v Empress Diamonds Pty Ltd ATF Empress Discretionary Trust

This matter came before Blake J in the Federal Court of Australia, concerning a dispute between the Applicant and Empress Diamonds Pty Ltd ATF Empress Discretionary Trust (the First Respondent) and its director, Mr Ludmilla Yitshaki (the Second Respondent). The Applicant alleged that she was dismissed from her employment upon disclosing a diagnosis of aggressive breast cancer, and that the Respondents failed to make a payment in lieu of notice. The Applicant's evidence was that on 17 April 2019, she received her diagnosis and subsequently, her partner, Mr Woods, relayed this information to the Second Respondent. Mr Woods testified that the Second Respondent's primary concern was how the diagnosis would affect the business, and later stated that the Applicant would have to be let go.

The central legal issues before the Court were whether the First Respondent contravened provisions of the relevant Act and breached clauses of an Award by failing to make a payment in lieu of notice, and whether the Second Respondent was involved in these contraventions. The Court was required to assess the credibility of the witnesses, particularly in light of inconsistencies in the evidence presented, and to determine the extent of the Second Respondent's involvement in the alleged breaches.

Blake J found that while there were inconsistencies in the Applicant's evidence, she was ultimately a more reliable and credible witness. However, regarding the failure to make a payment in lieu of notice, the Court found that the unchallenged evidence established that Mr Sheppard was responsible for handling employee entitlements. The Second Respondent was not involved in calculating or making such payments, nor was there evidence that he considered the issue of notice. Consequently, Blake J concluded that the Second Respondent was not involved in the First Respondent's contraventions concerning the failure to make a payment in lieu of notice.

Despite this finding concerning the Second Respondent's non-involvement in the notice payment issue, Blake J found that the First Respondent had contravened certain sections of the Act and breached clauses of the Award. Declarations were to be made accordingly, with the question of compensation and penalties remaining to be resolved. The parties were directed to submit a minute of consent orders within 21 days, outlining directions for the filing of material on compensation and penalties, and providing an estimate for the duration of any subsequent hearing.